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C.J. Szafir: Rebecca Bradley will follow the law — not try to make it

C.J. Szafir
Published 11:00 p.m. CT March 31, 2016

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Wisconsin Supreme Court incumbent Justice Rebecca Bradley (left) and Judge JoAnne Kloppenburg shake hands after the debate March 15 at Eckstein Hall, the home of Marquette University Law School.(Photo: Michael McLoone / for the Journal Sentinel)Buy Photo

Much has been written and said about the candidates for the Wisconsin Supreme Court race. The vast majority of which has been either exaggerated, blown out of proportion, or simply inaccurate. Fortunately, the people of Wisconsin, with their vote on April 5, will be the ones to have the final say about the future of our supreme court. That decision should be based on the candidates' judicial philosophies.

The choice between current Wisconsin Supreme Court Justice Rebecca Bradley and Court of Appeals Judge JoAnne Kloppenburg is a stark one.

Justice Bradley has described the role of a judge as "to interpret the law, not invent it" with a duty to "state what the law is, not what they prefer it to be." In other words, when hearing cases, judges should not impose their own political preferences by treating the text of the constitution as a "living document," evolving with public opinion polls.

This shows that she recognizes that our laws and constitutions are sacred, passed by members of the legislature who are elected by "we the people."

Justice Bradley's judicial restraint is cut from the same cloth as recently deceased U.S. Supreme Court Justice Antonin Scalia. This philosophy is evident in his majority decision in D.C. v. Heller, where the court ruled that a ban on handguns in someone's own home was unconstitutional. As it turns out, in the Constitution, the "right of the people to keep and bear Arms" means just that!

In contrast, Judge Kloppenburg has described the constitution as a way to "promote a more equal society." But equal to whom? And why is it the duty of a judge, rather than the legislature, to promote equality and fairness?

These questions are completely subjective, meaning different things to different people. And that's the main problem with the liberal legal theory. Although well-intentioned – Judge Kloppenburg has promised to uphold our constitution – when making decisions, left-leaning judges are likely to fall victim to the enchanting siren of replacing the text of the law with their own political beliefs.

This puts Judge Kloppenburg in the same camp as U.S. Supreme Court Justices Ruth Bader Ginsburg and Sonia Sotomayor. Ginsburg and Sotomayor's flexible – more activist – outlook has led to court decisions calling the Obamacare individual mandate penalty a "tax" and that government-imposed racial quotas do not violate the equal protection clause.

Their judicial activism views the law as nothing more than putty in the hands of a judge, to be molded to one's predilections. It's incredibly dangerous and, if past is prologue, risks undermining tangible constitutional rights, such as the right to free speech, bear arms, and free exercise of religion.

It also matters for our system of government. When judges decide cases based on their own political views rather than the text of the law, the elected legislature is no longer writing the law and the judiciary is no longer interpreting the law. Our checks and balances are thrown off-kilter. And while some on the legal left want the judiciary to create rights where none exist in the constitution, that approach to judging is not really creating rights. It's simply transferring rights away from the elected legislature to the judiciary. When all this happens, the people lose power.

Despite all the noise in this race, voters should remember the real issues facing the Wisconsin Supreme Court when they cast their ballots. Their decision will shape the court for years to come.

C.J. Szafir is the vice president for policy and deputy counsel at the Wisconsin Institute for Law & Liberty (WILL). The views expressed above are his own and not on behalf of WILL.